Money and politics
My Vote Counts NPC v Speaker of the National Assembly and Others (2018)
Does the Constitution require political parties to disclose the sources of their private funding?
My Vote Counts (MVC) – a non-profit organisation that campaigns for greater transparent regulation of political parties, argued that one of the dangers of withholding information on the private funding of political parties is that the wealthy elite has the privilege of having access to senior political party officials and public officials at the expense of the largely poor and marginalised population in our country. The lack of transparency in party funding allows for the wealthy elite and companies to buy favours from government by donating money to their party. So, for example, a coal mining company can quietly fund a political party with the hopes that if it wins the election, once in office it will ensure that the government will protect its interests. If the funding is transparent, citizens can trace and call out this sort of relationship. They see it as a constitutional obligation that political parties, and especially senior party officials who hold public office positions, disclose any private funding that they receive.
According to MVC, political parties have mostly been united in their opposition to transparency of their private funding. Since its establishment, MVC has sought information relating to the private funding of political parties in terms of the Promotion of Access to Information Act 2 of 2002 (PAIA).
When some of those political parties refused to disclose this information, MVC challenged the constitutionality of PAIA in the High Court.
Path to the Constitutional Court
MVC approached the Western Cape High Court challenging the constitutionality of PAIA because it did not address access to information about the private funding of political parties.
The High Court held that information about the private funding of political parties registered for elections under the Constitution is reasonably required for the effective exercise of the right to vote in such elections and to make political choices. The High Court declared that PAIA is inconsistent with the Constitution and invalid insofar as it does not allow for the recordal and disclosure of private funding information.
Section 167(5) of the Constitution states that the Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act, or conduct of the President is constitutional. Therefore, the order of unconstitutionality of PAIA made by the High Court had to be confirmed by the Constitutional Court, which it did in its judgment.
Some of the Arguments
My Vote Counts
MVC argued that PAIA was passed to facilitate access to information, but stated that it in fact did not provide for the disclosure in terms of the private funding of political parties. MVC challenged PAIA’s failure to address the private funding of political parties.
Minister of Justice and Correctional Services
The Minister argued that PAIA makes adequate provision for the recordal and disclosure of information on the private funding of political parties and independent candidates. He also argued that the provision that deals with the funding of political parties in the Constitution is not section 32 (access to information) read with section 19 (political rights), but section 236 (funding for political parties) of the Constitution.
What did the Constitutional Court decide?
The Court found that unchecked or secret private funding could undermine the fulfilment of constitutional obligations by political parties or independent candidates and by extension South Africa’s strategic objectives. It held that for every citizen to be truly free to make a political choice, including which party to join and which not to vote for or which political cause to campaign for or support, access to relevant or empowering information must be facilitated.
Political parties and independent candidates should not be left to pick and choose what information should be held, preserved and disclosed to those who depended on that information to determine to whom to entrust their future, that of the nation, and posterity. All information necessary to enlighten the electorate about the dependability of those seeking public office must not only be compulsorily captured and preserved, but also made reasonably accessible.
The Court held that PAIA’s failure to provide for access to information on private funding of political parties is a deficiency that renders PAIA inconsistent with the Constitution. The declaration of invalidity was suspended for 18 months in order to allow Parliament to remedy the defects in PAIA and to allow for the recordal and disclosure of private funding of political parties and independent candidates.
If secrecy thrives, then our constitutional project would be at risk of being betrayed or shipwrecked.
Impact and Significance
Following the Constitutional Court’s judgment in June 2018, President Cyril Ramaphosa issued a press statement that identified the need for private funding regulation of political parties as part of a vibrant democracy. Other political parties expressed their support of the ruling.
That is the highest Court in the land, we will abide by and respect the decision of the Constitutional Court.
Our democracy is for sale to the highest bidder … there are people who seek patronage and … this encourages corruption, so we think this is a step in the right direction, but there is still a long way to go before our party funding system is normalized.
We welcome the Constitutional Court judgment as it reaffirms the position, we took way back in 2003 as the United Democratic Party saying that parties must disclose their private funders. This is particularly important in the context of what is happening in the country insofar as state capture is concerned. Capture of the state starts with the capture of political parties.
Money is the milk of politics. For any political party to survive the political terrain will require funding … it’s where we obtain funding from that’s critical to the public. There are parties that probably get funding because of favours they offer certain individuals and companies. The public has a right to know where we get our funding from.
The President’s press statement also listed the Political Party Funding Bill as one of eight bills the President would sign and further apply his mind with urgency and thoroughness to enable the soonest feasible commencement.
The ‘Political Party Funding’ Bill was signed into law by the President on 21 January 2019. It made it a law for political parties to reveal their private funding annually. However, the Electoral Commission indicated to Parliament that it would need at least six months to get the system required by the Political Party Funding Act functional. The Electoral Commission had to develop an electronic online submission system to facilitate easy and efficient declarations.
We have been in favour all along to declare and make known where we get our funding from. But we said all along all parties should do the same. Luckily now the Court says it should be done. But the new Bill on funding also makes provision for parties to declare where they get their funding from.
The Political Party Funding Act provides for and regulates the public and private funding of political parties which includes, amongst others:
- the establishment and management of Represented Political Parties’ Fund and the Multiparty Democracy Fund;
- the prohibition of certain donations made directly to political parties;
- the regulation of donations accepted; and
- the provision for administrative fines.
Among the key provisions of the Act is the requirement on political parties and donors to make separate disclosures of all donations in excess of the declaration threshold of R100 000 per year.
MVC reacted by stating that the implementation of the Act would drastically enhance transparency and accountability in the country’s political and electoral system.